In a landmark judgment that redefines divorce in Kenya, the High Court at Kisii has ordered a woman to refund dowry to her ex-husband and declared that the concept of alimony is dead and incompatible with the 2010 Constitution.
In CKN vs DMO, Civil Appeal No. 21B of 2022, Justice DKN Magare delivered judgment on December 8, 2023, holding that alimony is “an anathema to the equality of men and women.
“The case involved a bitter divorce between a couple married under both Kisii Customary Law and a Christian marriage. At the dissolution of the marriage, the trial court had ordered return of dowry and dealt with issues of alimony and child custody.The woman, CKN, appealed to the High Court challenging, among others, the order to return dowry.
Justice Magare dismissed the appeal and upheld the order for refund.
Dowry must be returned
The court held that the appellant had not laid any basis for not returning dowry. The judgment notes that other than tradition, the return of dowry is crucial where there are two underlying marriage traditions – Kisii Customary Law and a Christian marriage.
“The court rightly ordered return of the two instruments for each of the marriages. The marriage certificate of the Christian marriage is returned to signal the cancellation of the Christian marriage,” Justice Magare stated.
On customary law, the judge was categorical:
“The traditional marriage is cancelled by return of dowry. Whether the same is returned by her or her father, it is irrelevant.”The court held it is unnecessary to join the woman’s parents to get a refund of dowry and that she had two years to file an indemnity suit against her father for return of the dowry.
In justifying the order, the court cited precedent in RKM vs GMN eKLR, where Justice Nagilah had ordered: “On the issue of refund of the dowry, DW2 confirmed that he took the dowry… The court concludes that the cows were two at the value of Kshs 40,000/= each and cash value of Kshs 50,000/=. Therefore the petitioner’s father is hereby ordered to refund Kshs 130,000/= to the respondent as dowry.”[2015]*
Alimony is unconstitutional in the most far-reaching part of the judgment, Justice Magare held that alimony no longer exists in Kenyan law.
The court framed the main issue as whether the concept of alimony was part of Kenyan law considering the right to equality under Article 45 of the Constitution, which provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
“The High Court held that alimony was no longer a reality in Kenya with the introduction of the equality clause provided under article 45 of the Constitution,” the judgment summary reads.The judge explained the history of alimony, stating: “The reality of the concept of alimony is that it was based on the concept that the men and women were not equal. A man and woman join in holy matrimony and become one and that is the man. This led to the men paying alimony as they slowly let go of their ex-wives. Alimony ceased on re-marriage…”With Article 45, the court held, that unequal foundation has been removed. The Constitution states:> “45 (3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”Justice Magare therefore found that ordering a man to continue maintaining a woman after divorce perpetuates inequality and has no constitutional basis.The judgment also addressed jurisdiction, holding that a divorce court cannot determine rights of a child of a divorcing couple as that jurisdiction belongs to the Children’s Court under Section 59 of the Children Act.
In a final human touch, the judge noted the parties still appear young and expressed “sincere hope that the parties who still appear young can refresh and go back to the market without the baggage of the failed marriage.”He also noted the disdain with which the appellant was relating to the respondent, with the appellant describing how the respondent is happily married and settled in Mlolongo in Machakos County.
